Lawyers are not algorithms: sustainability, corruption, and the role of the lawyer in institutional frameworks and corporate transactions

ABSTRACT Among key emerging societal principles to which a lawyer owes a high degree of fidelity are those that advance sustainability and that combat corruption. This essay considers the character of those ethical obligations when sustainability and corruption principles are manifested against the needs of institutions and the objectives of ‘deals’. Part 1 briefly introduces the challenge of lawyer ethics. Part 2 then maps the lawyer’s ethics duty as a function of cross cutting ethical duties. Part 3 turns to the framework and challenges of the ethical lawyer, situating the role of lawyers as ethical gatekeepers and mediators. Part 4 applies the insights developed to examine the lawyer’s ethical dilemmas as they may manifest themselves within the specific context of sustainability and corruption and within institutional frameworks and client transactions. The essay concludes with the core insight that ethics is a deeply moral project and that fidelity to moral principles ought to drive ethical decision making.

[1]  L. Backer,et al.  The Algorithmic Law of Business and Human Rights: Constructing a Private Transnational Law of Ratings, Social Credit, and Accountability Measures , 2020, SSRN Electronic Journal.

[2]  J. Rogers,et al.  Professional associations as regulators: an interview study of the Law Society of New South Wales , 2019, Legal Ethics.

[3]  Richard F. Devlin,et al.  Economic corruption, political machinations and legal ethics: correspondents’ report from Canada , 2019, Legal Ethics.

[4]  J. Setzer,et al.  Climate change litigation: A review of research on courts and litigants in climate governance , 2019, WIREs Climate Change.

[5]  M. Fotaki Feminist Ethics , 2019, Handbooks in Philosophy.

[6]  M. S. Monteiro,et al.  Corruption and supply chain management toward the sustainable development goals era , 2018, Corporate Governance: The International Journal of Business in Society.

[7]  N. Mauthner Toward a Posthumanist Ethics of Qualitative Research in a Big Data Era , 2018, American Behavioral Scientist.

[8]  L. Backer Unpacking Accountability in Business and Human Rights: The Multinational Enterprise, the State, and the International Community , 2018 .

[9]  R. Adamson Vulnerabilities of Women in Extractive Industries , 2017 .

[10]  David Nersessian Business Lawyers as Worldwide Moral Gatekeepers? Legal Ethics and Human Rights in Global Corporate Practice , 2015 .

[11]  J. Ruggie,et al.  Adding Human Rights Punch to the New Lex Mercatoria: The Impact of the UN Guiding Principles on Business and Human Rights on Commercial Legal Practice , 2015 .

[12]  Esther Hennchen Royal Dutch Shell in Nigeria: Where Do Responsibilities End? , 2015 .

[13]  Jeffrey R. Boles The Two Faces of Bribery: International Corruption Pathways Meet Conflicting Legislative Regimes , 2015 .

[14]  J. Vollhardt,et al.  Fighting the Good Fight , 2014, Personality & social psychology bulletin.

[15]  C. Whelan,et al.  Privatizing Professionalism: Client Control of Lawyers’ Ethics , 2012 .

[16]  B. Parguel,et al.  How Sustainability Ratings Might Deter ‘Greenwashing’: A Closer Look at Ethical Corporate Communication , 2011 .

[17]  J. Ruggie,et al.  Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises , 2011 .

[18]  Susan Hanson,et al.  Gender and mobility: new approaches for informing sustainability , 2010 .

[19]  L. Backer Global Panopticism: States, Corporations, and the Governance Effects of Monitoring Regimes , 2008 .

[20]  Dirk Matten,et al.  Business Ethics: Managing Corporate Citizenship and Sustainability in the Age of Globalization , 2007 .

[21]  C. Ess Ethical pluralism and global information ethics , 2006, Ethics and Information Technology.

[22]  Fred C. Zacharias Coercing Clients: Can Lawyer Gatekeeper Rules Work? , 2006 .

[23]  Donald C. Langevoort Internal Controls After Sarbanes-Oxley: Revisiting Corporate Law's Duty of Care as Responsibility for Systems , 2005 .

[24]  M. Sargent Lawyers in the Moral Maze , 2004 .

[25]  L. Backer The Duty to Monitor: Emerging Obligations of Outside Lawyers and Auditors to Detect and Report Corporate Wrongdoing Beyond the Securities Laws , 2003 .

[26]  H. Steinmann,et al.  Introduction to the Volume: Ethics in Multinational Corporations , 1998 .

[27]  Stephen W. Jones A Lawyer's Ethical Duty to Represent the Unpopular Client , 1998 .

[28]  Terri L. Rittenburg,et al.  Global Ethics: An Integrative Framework For MNEs , 1997 .

[29]  J. Futrell Environmental Ethics, Legal Ethics, and Codes of Professional Responsibility , 1994 .

[30]  C. Nadelson Ethics, empathy, and gender in health care. , 1993, The American journal of psychiatry.

[31]  Judith A. McMorrow Rule 11 and Federalizing Lawyer Ethics , 1991 .

[32]  H. Book,et al.  Is empathy cost efficient? , 1991, American journal of psychotherapy.

[33]  Christine A. Littleton Women's Experience and the Problem of Transition: Perspectives on Male Battering of Women , 1989 .

[34]  R. Post On the Popular Image of the Lawyer: Reflections in a Dark Glass , 1987 .

[35]  J. Flynn Professional Ethics and the Lawyer’s Duty to Self , 1976 .

[36]  G. Tavard Ethical Ghettos in the Ecumenical Age: Where religious caricatures are still triumphant , 1974 .

[37]  L. O. Kattsoff Making Moral Decisions: An Existential Analysis , 1965 .